Statement Of Senator Patrick Leahy (D-Vt.), Chairman, Senate Judiciary Committee, On Cloture On The Nomination Of Caitlin Halligan to the D.C. Circuit December 5, 2011 Tomorrow the Senate should be holding an up-or-down vote on the long-delayed nomination of Caitlin Halligan to fill one of three vacancies on the Court of Appeals for the D.C. Circuit. Instead, for the seventh time since President Obama took office 34 months ago, we are required to overcome a Republican filibuster for the Senate to consider one of President Obama’s superbly qualified judicial nominees. Ms. Halligan, President Obama’s first nominee to the important D.C. Circuit, is the former Solicitor General for the State of New York. With an impressive record in private practice and public service, she is widely respected for the quality of her work as an advocate. Indeed, Ms. Halligan’s nomination was greeted with bipartisan support and has since garnered endorsements from law enforcement officials and organizations, women’s organizations, law school deans and professors, judges and preeminent lawyers from across the political spectrum. The Judiciary Committee favorably reported Ms. Halligan’s nomination nearly nine months ago. By any traditional standard, she is the kind of superbly qualified nominee who should easily have been confirmed by the Senate months ago with the support of both Republicans and Democrats. I am disappointed that yet again instead of seeing bipartisan cooperation we are required to seek cloture. New Standards for President Obama’s Judicial Nominations From the beginning of the Obama administration, we have seen Senate Republicans shift significantly away from the standards they used to apply to the judicial nominations of a Republican President. During the administration of the last President, a Republican, Republican Senators insisted that filibusters of judicial nominees were unconstitutional. They threatened the “nuclear option” in 2005 to guarantee up-or-down votes for each of President Bush’s judicial nominations. Senator McConnell, then the Republican whip, said: “Any President’s judicial nominees should receive careful consideration. But after that debate, they deserve a simple up- or-down vote. It’s time to move away from advise and obstruct and get back to advise and consent. The stakes are high . The Constitution of the United States is at stake.” Many Republican Senators declared that they would never support the filibuster of a judicial nomination—never. Yet, only a few years later, Senate Republicans reversed course and filibustered President Obama’s very first judicial nomination, that of Judge David Hamilton of Indiana. David Hamilton was a widely respected 15-year veteran of the Federal bench. President Obama nominated Judge Hamilton in March 2009, after consultation with the most senior and longest- serving Republican in the Senate, Senator Dick Lugar of Indiana, who strongly supported the nomination. Rather than welcome the nomination as an attempt by President Obama to step 1 away from the ideological battles of the past, Senate Republicans ignored Senator Lugar’s support, caricatured Judge Hamilton’s record and filibustered his nomination. After the Senate rejected that filibuster, Judge Hamilton was confirmed. The partisan delays and opposition to President Obama’s judicial nominations have continued since. Senate Republicans have required cloture motions to be filed on judicial nominations that ultimately won unanimous support from the Senate. Earlier this year they filibustered the nomination of Professor Goodwin Liu of California, who was supported by both his home state Senators to fill a judicial emergency vacancy on the Ninth Circuit. That successful filibuster of a brilliant lawyer and a good man prevented the Senate from having an up-or-down vote on his nomination and prevented an outstanding nominee from serving the American people on the Federal bench. They attempted to justify that filibuster on ideological grounds. There is no such justification here, in connection with the nomination of Caitlin Halligan who is a mainstream lawyer and public servant from New York. Senate Republicans took the virtually unprecedented step this year of requiring cloture to be filed on a district court nomination. That effort to ratchet up the judge wars was rejected when 11 Republican Senators joined to ensure an up-or-down vote on the nomination of Jack McConnell to the District of Rhode Island. With their latest filibuster, the Senate Republican leadership seeks to set yet another new standard, one that threatens to make confirmation of any nominee to the D.C. Circuit virtually impossible for the future. Caitlin Halligan is well-qualified nominee with a mainstream record as a brilliant advocate on behalf of the State of New York and in private practice. I have reviewed her record carefully in the course the Judiciary Committee’s thorough process, including her response to our extensive questionnaire and her answers to questions at her hearing and in writing following the hearing. In my view, there is no legitimate reason or justification for filibustering her nomination. Caitlin Halligan is the kind of nominee who has demonstrated not only legal talent but also a dedication to the rule of law throughout her career. We should encourage nominees with the qualities of Ms. Halligan to engage in public service and we should welcome them on the Federal bench, not denigrate them. Concocted controversies and a blatant misreading of Ms. Halligan’s record as an advocate are no reason to obstruct this outstanding nomination. We must reject these misguided arguments. This filibuster against this qualified woman will set a standard that could not be met by judicial nominees of Presidents of either party. I trust that, as with the nomination of Jack McConnell, sensible Republican Senators will, again, join in preventing such an outcome. It is time to edge away from this dangerous precipice. Caitlin Halligan is a Well-Qualified Nominee with Widespread Support When Democratic Senators cooperated to confirm John Roberts to the D.C. Circuit in 2003, it broke the stalemate created by the Republicans refusal for years to even consider President Clinton’s nominees to that Court. Like John Roberts, Caitlin Halligan is a highly regarded 2 appellate advocate with the kind of impeccable credentials in both public service and private practice that make her unquestionably qualified to serve on the D.C. Circuit. She should be confirmed, not unjustifiably filibustered. Ms. Halligan served for nearly six years as Solicitor General of New York and has been a leading appellate lawyer in private practice. She is currently General Counsel at the New York County District Attorney’s Office, an office that investigates and prosecutes 100,000 criminal cases annually in Manhattan. Ms. Halligan has served as counsel of record in nearly 50 matters before the U.S. Supreme Court, arguing five cases before that court and many cases before Federal and state appellate courts. Just as John Roberts had served in government and clerked for the Supreme Court, she clerked for Supreme Court Justice Stephen Breyer. She also clerked for Judge Patricia Wald on the D.C. Circuit, the court to which she has been nominated. The American Bar Association’s Standing Committee on the Federal Judiciary, which Republican Senators often cite, unanimously rated Ms. Halligan “Well-Qualified” to serve on the D.C. Circuit. That is the highest rating that can be received from its non-partisan peer review. The letters of support we have received for Ms. Halligan’s nomination from a broad range of people and organizations is a testament both to her exceptional qualifications to serve and to the fact that this should be a consensus nomination, not a source of controversy and contention. Twenty-one prominent appellate advocates from across the political spectrum who have worked with Caitlin Halligan, including Miguel Estrada and Carter Phillips, endorsed her nomination, writing: “We believe that Caitlin is an outstanding selection for the D.C. Circuit. She is a first- rate lawyer and advocate. She is well respected and highly regarded as a leader of the profession. Caitlin has an ideal judicial temperament. She brings reason, insight and judgment to all matters. Even those of us who have been on the opposite sides of Caitlin in litigation have been greatly impressed with her ability and character. We have no doubt she would serve with distinction and fairness.” When Ms. Halligan was nominated, Carter Philips, a preeminent Supreme Court advocate who served as Assistant to the Solicitor General during the Reagan administration, described her as “one of those extremely smart, thoughtful, measured and effective advocates” and concluded that she “will be a first-rate judge.” Judge Albert Rosenblatt, who was appointed to serve on New York’s highest court by former Republican Governor George Pataki, wrote in praise of Ms. Halligan’s work as New York’s Solicitor General, concluding that “her sense of fairness and balance is among the best – if not the best – that I have ever seen in my 34 years as a judge and a prosecutor.” This is not a nomination that should be filibustered. To do so will set a destructive standard that no one will be able to meet. If someone of Caitlin Halligan’s outstanding credentials, character and experience cannot be confirmed, no one can be. The nomination of Ms. Halligan has likewise received significant support from law enforcement officials and organizations. The National District Attorneys Association has called Caitlin Halligan’s background “impressive,” stating that she “would be an outstanding addition” to the 3 D.C. Circuit. District Attorneys from the State of New York, including Republicans Derek Champagne, Daniel Donovan, Jr., William Fitzpatrick, James Reams and Scott Burns, support her nomination, as do the New York Association of Chiefs of Police and the New York State Sheriff’s Association.